Argument Recap / Panel Activity

Earlier this month, the court heard oral argument in Skaar v. McDonough, in which McDonough, the Director of Veterans Affairs, appeals a decision by the Court of Appeals for Veterans Claims certifying a class action of veterans. Skaar cross-appeals to argue the court misinterpreted equitable tolling and waiver standards to exclude from the certified class veterans who had not timely appealed past agency decisions. Amicus briefs in support of Skaar were filed by the National Veterans Legal Services Program and 15 Administrative Law, Civil Procedure, and Federal Courts Professors. Judges Moore, Newman, and Hughes heard the argument. This is our argument recap.

Sosun Bae argued for McDonough. Bae argued that under 38 U.S.C. § 7252 the court lacked jurisdiction to grant a class action for individuals lacking a Board decision. Bae argued that by granting this class action to include those without a Board decision, the court committed clear reversible error. Judge Moore asked if Bae’s argument was based on the fact that there is no statute granting supplemental jurisdiction to the Court of Appeals for Veterans Claims, unlike district courts. Bae agreed with that characterization and noted because of its separate statutory provision district courts have been able to certify classes of future claimants. Bae further contended that the Administrative Procedure Act and the jurisdictional statute in question here were created after the supplemental jurisdiction statute granting these allowances to district courts, and Congress specifically cabined the jurisdiction of the Court of Appeals for Veterans Claims. Judges Newman and Moore asked what the harm would be to allow future claimants to join in this case. Bae argued that one of the harms would be to bind every veteran coming behind Skaar.

Lynn Neuner argued the appeal for Skaar, contending that the Court of Appeals for Veterans Claims was justified in certifying the future class of veterans. Judge Moore asked how Skaar having a Board decision grants jurisdiction for future claimants. Neuner argued that a Board decision is not required for every plaintiff because APA class actions do not require a decision or because of the supplemental jurisdiction statute. Judge Hughes asked how this interpretation can be justified given that the Court of Appeals for Veterans Claims was created after the supplemental jurisdiction statute and the court’s jurisdiction was limited in § 7252. Neuner argued that the Court of Appeals for Veterans Claims was designed by Congress to be more plaintiff friendly and therefore should not limit class participation.

Judge Hughes also asked why individual adjudication is unsatisfactory compared to a class action. Neuner argued that the limitation of legal costs and the efficient adjudication of cases, especially when many veterans lack legal representation, make a class action more veteran friendly. Judge Newman asked how a class action would be easier given that each individual veteran still must prove a service connection to get relief. Neuner agreed with the point about service connection, but argued that injunctive relief, notice functions, and swifter adjudication provide benefits to veterans.

Caroline Markowitz argued the cross-appeal for Skaar. She said the Court of Appeals for Veterans Claims incorrectly applied equitable tolling to limit from the class those who had not timely appealed to the Court of Appeals for Veterans Claims. Judge Hughes asked what is common to the entire class to allow for equitable tolling to apply to veterans that missed their filing deadlines. Markowitz argued that the VA mechanism was so complex as to require equitable tolling. She further contended that this case is analogous to a Supreme Court case from 1986 that certified past claimants based on equitable tolling because of government concealment. Markowitz contended that the government incorrectly scoring radiation exposure is sufficiently analogous.

In Bae’s rebuttal, Judge Moore asked whether, if VA lied to veterans by saying they were not exposed to a biological agent when they really had been, that would trigger equitable tolling. Bae agreed that lying to veterans would be a much stronger case, but argued here there is no indication of lying by VA. Judge Moore asked if equitable tolling should apply given that the government reassessed the amount of radiation exposure in this case due to a flawed methodology, and it raised Skaar’s radiation exposure from 4.2% to 17.9%. Bae argued that there should not be a categorical rule for a government error to allow for equitable tolling, especially when the error was not a result of bad faith. Also, Bae noted, veterans always can have their cases reopened with new information.

Markowitz in her rebuttal argued that time is running out for these veterans. Judge Moore asked why Skaar was seeking the inclusion of other veterans in a class action given that this is delaying the ability to hear Skaar’s case on the merits. Markowitz noted that Skaar feels responsible for all veterans in this case. Markowitz also argued that a class action would potentially provide an avenue to better provide notice to veterans of potential claims beyond general notice by VA.

We’ll continue to monitor the case and report on any developments.